Re: Opposition by Silly Sollys Group Pty Ltd to applications under section 92 of the Trade Marks Act 1995 (Cth) by cc group investments pty ltd to remove trade mark numbers 803881 - Crazy Clark's stylised

This matter concerned opposition by Silly Sollys Group Pty Ltd (the Opponent) to applications by cc group investments pty ltd (the Applicant) to remove three trade mark registrations under section 92 of the *Trade Marks Act 1995* (Cth). The applications for removal were based on grounds of non-use. The hearing was conducted by a delegate of the Registrar of Trade Marks.

The primary legal issue before the delegate was whether the trade marks had remained registered for a continuous period of three years ending one month before the filing of the removal applications, during which the registered owner had neither used the trade mark in Australia nor used it in good faith in Australia, as stipulated by section 92(4)(b) of the Act. The Opponent also contended that even if a ground for removal was established, the Registrar should exercise discretion under section 101(3) of the Act to allow the trade marks to remain on the Register.

The delegate considered the evidence of use of the trade marks. The Opponent’s evidence of actions such as registering a business name and filing a trade mark application were found not to constitute use of a trade mark in the course of trade. Evidence regarding use by prior owners or unrecorded assignees was also insufficient to rebut the non-use claim. The delegate noted that the trade marks had been registered for more than five years, meaning only the ground under section 92(4)(b) required consideration, as per the precedent set in *Lidl Stiftung & Co. KG v Conga Foods Pty Ltd*.

Ultimately, the delegate was not satisfied that it was reasonable to exercise the discretion under section 101(1) in favour of the Opponent. Consequently, the ground for removal under section 92(4)(b) was established for each application, and the delegate directed that all three trade mark registrations be removed from the Register. Costs were awarded to the Applicant.